2026-VIL-1755-CESTAT-MUM-ST
  1. Home
  2. 2026-VIL-1755-CESTAT-MUM-ST

SERVICE TAX CESTAT Cases

Service Tax - Refund of tax paid on services to educational institutions: limitation and maintainability without challenging self-assessment - Exemption for auxiliary educational services under Sl. No. 9 of Notification No.25/2012-ST – Refund claim of service tax paid on housekeeping and canteen/outdoor catering services provided to educational institutions – Appellant filed refund claims on the ground that the services were exempt as auxiliary educational services, after the Board by a Circular clarified the position on a representation made by the Appellant - The Commissioner (Appeals) counted the period of one year from the date of the Board's clarification and held the claims within time, against which the Revenue appealed, whereas the Appellant contended that the tax was paid under protest and that limitation could not bar the claims - Whether the refund claims are barred by limitation and are maintainable - HELD - The Notification No.25/2012-ST was effective from 01.07.2012, the Appellant continued to collect and pay service tax and file ST-3 returns, and raised no contest until the representation to the Board. A Circular can clarify but cannot modify an assessment, and the Board is not the prescribed appellate authority against a self-assessment - It is settled law by the Apex Court that even a self-assessment is an assessment order, and no refund claim is maintainable until it is set aside in appellate proceedings, and this law applies to service tax refunds as well. A refund proceeding is not an appeal and the authority cannot sit in appeal over the assessment - The decisions relied upon by the Appellant on limitation were rendered much before this settled law and dealt only with limitation where duty was paid under a mistaken belief of law. The representation to the Board and the clarification issued cannot be equated with appellate proceedings, and the refund claims were not even maintainable - The submissions on limitation are rejected, the appeals filed by the Appellant are dismissed, and the appeals filed by the Revenue are allowed - Service Tax - Bar of unjust enrichment under Section 11B of the Central Excise Act, 1944 as made applicable to service tax - Credit notes issued to service recipients - Rule 6 of the Service Tax Rules, 1994 - Appellant claimed refund of service tax collected on housekeeping and canteen/outdoor catering services to educational institutions, and contended that the issue of credit notes for the tax collected showed that the incidence of tax was borne by it - Commissioner (Appeals) held that in canteen/outdoor catering the real consumers were the students and faculty members, the educational institutions refused to share fee and pricing information, and the Appellant failed to prove that the incidence of tax was not passed on, and therefore ordered the amount to be credited to the Consumer Welfare Fund - Whether the bar of unjust enrichment applies and whether the issue of credit notes or Rule 6 takes the claims outside it - HELD - The sine qua non for a refund under Section 11B is that the claimant establishes that the incidence of tax has not been passed on to any other person, and the burden lies on the claimant. The buyer in clause (e) of the proviso to Section 11B(2) is not restricted to the first buyer and can be a buyer downstream. A credit note issued after the payment of tax and clearance, and relied upon to show that the burden was not passed on, raises a doubt and cannot be accepted as a reliable document - The argument that Rule 6 of the Service Tax Rules, 1994 takes refunds of service tax outside the bar of unjust enrichment has been answered by the High Court, which held that post-clearance adjustments such as credit notes do not help the assessee to get over the bar under Section 11B - The Appellant failed to prove that the incidence of service tax was not passed on to the students and faculty members who ultimately bore the burden - The bar of unjust enrichment applies, the appeals filed by the Appellant are dismissed, and the appeals filed by the Revenue are allowed.
Download File

Quick Search

/

Advance Search

GST Resources

/

Gst Rate Finder

Tax Vista

Your Weekly Tax Recap

By Dr. G. Gokul Kishore

Weekly Summary

VIL Video

GST & Customs updates: Sep'26
By CA Vivek Jalan

Create Account

Security-Code
New Code?

Log In

New User ? Forgot Password ?

Forgot Password

Security-Code
New Code?
Please Note: This facility is only for Subscribing Members.

Email this page

Security-Code
New Code?

Feedback this page

Schedule a Demo

Schedule a demo to know the features and advantages of VILGST portal. Get to know the tips to find the desired results in faster way.

Security-Code
New Code?

Caselaw Request Form (CRF)

Didn’t find what you are searching for? No worries, please give us the following details and VIL will email you the desired Caselaws at the earliest:

Security-Code
New Code?